Can I Be Fired for Filing Workers’ Compensation?

People who have been injured on the job often have concerns over job security. Aside from the physical discomfort and stress related to your actual injury, it is natural to feel some level of anxiety over how your job is being handled in your absence. Concerns over the possible ramifications of missing too much time from work and the fear that your employer may actually replace you on the job causes many people to return to work before they have made a complete recovery, and discourages some from even filing for workers’ compensation benefits to begin with. If you have been injured on the job and have concerns that your injury or workers’ compensation claim could have a negative impact on your overall employment, be assured that in California, there are protections in place that prevent employers from taking adverse actions against injured employees, as well as protections that help ensure your job will be waiting for you when you return.

Protections for Injured Workers

The California Workers’ Compensation program is operated through the Department of Industrial Relations and its Division of Workers’ Compensation (DWC). According to the DWC California Injured Worker Guidebook it is illegal for your employer to fire you or otherwise penalize you for being hurt on the job or for filing a workers’ compensation claim for benefits. These protections extend to any coworkers who may have witnessed your injury and who may be called upon to testify as to what they saw as part of your claim. State and federal laws which protect injured workers and prevent your employer from discriminating or taking retaliatory action against you as the result of an injury or ensuing disability include the following:

California Labor Code: Section 132a of the Labor Code specifically prohibits an employer from discharging, attempting to discharge, or discriminating against a worker for filing or intending to file for workers’ compensation benefits, or for disputing a delayed or denied claim or claim amount. Penalties for an employer or insurer for the employers who engages in this type of behavior include:

Facing misdemeanor charges;

Being subject for costs and expenses up to $250;

Having to increase the total amount of the workers’ compensation rate by half, or up to $10,000; and

Having to reinstate the employee and provide reimbursement for any lost wages or benefits resulting from the employer or the employers’ insurers actions.

It is also a misdemeanor crime for any employer to fire, threaten to fire, or to discriminate against employees who are witnesses to your accident or injury. An employer who engages in intimidating or retaliatory behavior must provide reinstatement for the employee, as well as reimbursement for lost wages and benefits.

Family and Medical Leave Act (FMLA) and theCalifornia Family Rights Act (CFRA): Based on federal law, the CFRA allows an employee to take up to 12 weeks of paid or unpaid leave under certain conditions and still be afforded job protections, as well as employer provided health benefits. Workers are protected under the following circumstances:

When an employee has suffered an injury and is unable to work, regardless of whether or not the injury occurred on the job;

To take care of an immediate family member who is suffering a serious health condition; and

After the birth or adoption of a child, or in cases of foster care placement.

To be eligible for a medical leave, you must have been working for your employers for at least a year, and have worked at least 1,250 hours during that year. Sick days, holiday or vacation time off, and personal days do not count towards the hourly requirement.

California Fair Employment and Housing Act (FEHA): Under the Fair Employment and Housing Act, job discrimination and harassment is prohibited based on any of the following factors related to on the job injuries:

Medical condition;

Mental or physical disability;

Denial of family or medical care leave; and/or

Protesting any type of discrimination covered under these provisions.

The FEHA prohibits discrimination for disabilities on the basis of that it will raise the employer’s insurance rates or that the disability may, at a future point, result in some type of harm to the employee or others. It does permit employers to take actions in cases which an employee currently poses a danger of harm, or is unable to perform essential functions of the job and no suitable replacement position can be found.

If you feel you are being intimidated or that your job is being threatened as the result of an on the job injury, or discover that a coworker who is a witness to your accident or injury has been threatened with retaliatory action if they testify in your case, the above laws can help to protect your rights as well as your job security. Contact an experienced workers’ compensation lawyer to see how these laws apply directly to your specific case and how you can enforce them to get the protection you need while filing for workers’ compensation benefits.

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